General terms and conditions of Mediabrix
Article 1 - Definitions
MediaBrix, established in Amersfoort, the Netherlands, with the Chamber of Commerce number 81313179, shall be referred to in these general terms and conditions as service provider.
The service provider's other party shall be referred to in these terms and conditions as the principal.
3. The parties are service provider and client together.
4. The agreement is understood to mean the service agreement between the parties.
Article 2 - Applicability of general terms and conditions
These terms and conditions shall apply to all offers, quotations, work, agreements and deliveries of services or goods by or on behalf of the service provider.
2. Deviations from these terms and conditions are only possible if this has been explicitly agreed in writing by the parties.
The agreement shall always contain obligations to perform to the service provider's best ability, not obligations to achieve a certain result.
Article 3 - Payment
Invoices must be paid within 30 days after the invoice date, unless the parties have made other arrangements in this respect in writing or another payment period is stated on the invoice.
Payments shall be made, without any appeal to suspension or settlement, by transferring the amount due to the bank account number stated by the service provider.
If the principal does not pay within the agreed period, he shall be in default by operation of law, without any warning being required. From that moment onwards the service provider shall have the right to suspend their obligations until the principal has met his payment obligations.
If the principal remains in default, the service provider shall proceed to collect. The principal shall bear the costs of such recovery. When the principal is in default, he shall owe the service provider not only the principal amount, but also the statutory (commercial) interest, extrajudicial collection costs and other damages. The collection costs are calculated according to the "Besluit vergoeding voor buitengerechtelijke incassokosten".
In case of liquidation, bankruptcy, seizure or suspension of payment of the principal, the service provider's claims on the principal shall be immediately due and payable.
If the principal refuses to cooperate in the execution of the order by the service provider, he shall still be obliged to pay the agreed price to the service provider.
Article 4 - Offers and tenders
The offers of the service provider shall be valid for a maximum period of 1 month, unless a different period for acceptance is mentioned in the offer. If the offer is not accepted within that period, the offer shall lapse.
2. Delivery times in offers are indicative and, if exceeded, do not entitle the client to dissolution or compensation, unless the parties have expressly agreed otherwise in writing.
3. Offers and quotations do not apply automatically to repeat orders. The parties must agree to this explicitly and in writing.
Article 5 - Prices
The prices mentioned in offers, quotations and invoices of the service provider shall be exclusive of VAT and other government levies, unless explicitly stated otherwise.
The prices of goods shall be based on the cost prices known at the time. Increases thereof, which could not be foreseen by the service provider at the time of the offer or conclusion of the agreement, may give rise to price increases.
3. With regard to the provision of services, the parties may agree on a fixed price when concluding the agreement.
If no fixed price has been agreed, the rate for the provision of services may be fixed on the basis of hours actually worked. The rate shall be calculated according to service provider's usual hourly rates, valid for the period in which he does the work, unless a different hourly rate has been agreed.
If no rate based on hours actually worked has been agreed, a recommended price for the services shall be agreed, with the service provider having the right to deviate therefrom up to 10%. If the recommended price is higher by more than 10%, the service provider shall timely inform the principal why the higher price is justified. In that case, the client has the right to cancel a part of the order that exceeds the recommended price increased by 10%.
Article 6 - Price indexation
The prices and hourly wages agreed at the conclusion of the agreement shall be based on the price level prevailing at the time. Service provider is entitled to adjust the fees to be charged to client annually per 1 January.
The client will be informed of adjusted prices, rates and hourly wages as soon as possible.
Article 7 - Provision of information by the client
The principal shall make all information relevant to the execution of the order available to the service provider.
The principal shall make available in time and in the desired form and manner all data and documents the service provider believes it needs to carry out the order correctly.
The client warrants the accuracy, completeness and reliability of the data and documents made available to the service provider, even if they originate from third parties, in so far as the nature of the order does not require otherwise.
The principal shall indemnify the service provider for any damage in whatever form resulting from the non-compliance with the provisions of the first paragraph of this article.
If and insofar as the principal requests, the service provider shall return the documents concerned.
If the client does not provide the data and documents required by the service provider, or does not provide them on time or properly, and the execution of the order is delayed as a result, the resulting extra costs and extra fees shall be for the client's account.
Article 8 - Withdrawal of commission
The principal shall be free to terminate the order to the service provider at any time he wishes.
If the principal cancels the order, the principal shall pay the wages owed and the expenses incurred by the service provider.
Article 9 - Execution of the agreement
Service Provider shall execute the agreement to the best of its knowledge and ability and in accordance with the requirements of good craftsmanship.
Service Provider has the right to have work done by third parties.
3. The execution shall take place in mutual consultation and after written agreement and payment of any agreed advance.
The principal shall be responsible for the service provider being able to start on the assignment in time.
Article 10 - Contract duration
The agreement between the principal and the service provider shall be entered into for an indefinite period, unless the nature of the agreement dictates otherwise or if parties have explicitly agreed otherwise in writing.
If within the term of the agreement the parties have agreed on a period for completion of certain work, this shall never be a fatal term. If this term is exceeded, the principal shall give service provider written notice of default.
Article 11 - Modification of the agreement
1. If, during the execution of the agreement, it appears that for a proper execution of the assignment it is necessary to change or supplement the activities to be carried out, the parties shall adapt the agreement accordingly in good time and in mutual consultation.
If parties agree that the agreement is amended or supplemented, this may influence the time of completion of the execution. Service provider shall inform the client of this as soon as possible.
If the amendment of or addition to the agreement has financial and/or qualitative consequences, service provider shall inform client in writing as soon as possible.
If the parties have agreed a fixed fee, the service provider shall indicate to what extent the change or supplement to the agreement will result in an increase of this fee.
Article 12 - Force majeure
Supplementary to the provisions of section 6:75 of the Civil Code, a shortcoming of service provider in the performance of any obligation towards the principal cannot be imputed to service provider in case of a circumstance independent of the will of service provider, as a result of which the performance of his obligations towards the principal is wholly or partly impeded or as a result of which the performance of his obligations cannot reasonably be required of service provider. Such circumstances shall include failure of suppliers or other third parties, power failures, computer viruses, strikes, bad weather conditions and work interruptions.
If a situation as referred to above occurs as a result of which the service provider cannot meet his obligations towards the principal, these obligations shall be suspended as long as the service provider cannot meet his obligations. If the situation referred to in the preceding sentence has lasted 30 calendar days, the parties shall be entitled to dissolve the agreement in writing fully or partly.
In the case referred to in paragraph 2 of this article, Service Provider shall not be obliged to compensate any damage, not even if Service Provider benefits from any advantage as a result of the force majeure situation.
Article 13 - Settlement
Client waives his right to set off a debt to service provider against a claim on service provider.
Article 14 - Suspension
The Client waives the right to suspend the fulfilment of any obligation arising from this Agreement.
Article 15 - Transfer of rights
Rights of a party under this agreement may not be transferred without the prior written consent of the other party. This provision is a clause with effect under property law as referred to in Article 3:83(2) of the Dutch Civil Code.
Article 16 - Extinction of the claim
Any right to compensation for damage caused by the service provider shall in any case lapse 12 months after the event from which the liability arose directly or indirectly. This does not exclude the provisions of article 6:89 of the Civil Code.
Article 17 - Insurance
The principal undertakes to insure adequately and keep insured all goods delivered which are necessary for the execution of the underlying agreement, as well as goods of the service provider present at the principal's premises and goods delivered subject to reservation of title, against fire, explosion and water damage, as well as theft.
2. The Client shall, at the first request, make the policy of these insurances available for inspection.
Article 18 - Liability for damage
Service provider shall not be liable for damage resulting from this agreement, unless service provider has caused the damage intentionally or with gross negligence.
If service provider owes client a compensation, the damage shall not exceed the fee.
Any liability for damage arising from or related to the execution of a contract shall at all times be limited to the amount paid out in the case in question by the (professional) liability insurance policy or policies taken out. This amount is increased by the amount of the excess according to the relevant policy.
The limitation of liability shall also apply if the service provider is held liable for damage resulting directly or indirectly from the improper functioning of the equipment, software, data files, registers or other goods used by the service provider in the execution of the order.
Not excluded is the liability of the service provider for damage resulting from intentional or deliberate recklessness of the service provider, his managerial or subordinates.
Article 19 - Liability of the principal
If an order is given by more than one person, each of them shall be severally liable for the amounts owing to the service provider on the basis of that order.
If an assignment is directly or indirectly granted by a natural person on behalf of a legal person, then this natural person can also be a private client. This requires that this natural person can be regarded as the (co)policy maker of the legal person. In the event of non-payment by the legal entity, the natural person will therefore be personally liable for the payment of the invoice, regardless of whether this invoice has been drawn up in the name of a legal entity or in the name of the client as a natural person or both of them, at the client's request or otherwise.
Article 20 - Indemnification
The principal shall indemnify the service provider against all third party claims related to the goods and/or services provided by the service provider.
Article 21 - Duty to complain
The principal shall be obliged to immediately report complaints about the work done in writing to the service provider. The complaint shall contain a description of the shortcoming that is as detailed as possible, so that the service provider is able to respond adequately.
In any case, a complaint cannot lead to the obligation of the service provider to carry out other work than agreed.
Article 22 - Reservation of ownership, right of suspension and right of retention
The goods present at the principal's premises and the goods and parts delivered shall remain the property of the service provider until the principal has paid the agreed price in full. Until then service provider may invoke his reservation of title and take back the goods.
If the agreed amounts to be paid in advance are not paid or not paid in time, the service provider has the right to suspend the activities until the agreed part is paid. There shall then be a question of creditor's default. In that case late delivery cannot be held against the service provider.
Service provider shall not be entitled to pledge or encumber in any other way the goods falling under its retention of title.
If goods have not yet been delivered, but the agreed advance payment or price has not been paid in accordance with the agreement, the service provider has the right of retention. The goods shall then not be delivered until the principal has paid in full and in accordance with the agreement.
5. In the event of liquidation, insolvency or suspension of payment of the client, the obligations of the client shall become immediately due and payable.
Article 23 - Intellectual property
Unless the parties have agreed otherwise in writing, the service provider shall retain all intellectual absolute rights (including copyright, patent right, trademark right, drawings and models right, etc.) to all designs, drawings, writings, carriers with data or other information, offers, illustrations, sketches, models, etc.
The intellectual absolute rights mentioned may not be copied, shown and/or made available to third parties or used in any other way without the written consent of the service provider.
Client agrees to keep confidential the confidential information made available to him by service provider. Confidential information shall in any case be taken to mean that which is covered by this article, as well as the business data. Principal undertakes to impose on his staff and/or third parties involved in the execution of this agreement a written obligation of confidentiality to the extent of this provision.
Article 24 - Confidentiality
1. Each Party shall keep confidential the information received (in whatever form) from the other Party and all other information concerning the other Party, the disclosure of which it knows, or ought reasonably to suspect, to be secret or confidential, or information the disclosure of which it knows might be harmful to the other Party, and shall take all necessary steps to ensure that its staff also keep such information confidential.
The confidentiality obligation mentioned in paragraph 1 of this article does not apply to information:
a. that was already in the public domain at the time of receipt by the recipient or subsequently became so without breach of any duty of confidentiality on the part of the recipient;
b. for which there is evidence that it was in the possession of the receiving Party at the time when it was transmitted by the other Party;
c. information received by the receiving Party from a third party where that third party had the right to provide that information to the receiving Party
d. disclosed by the receiving party pursuant to a legal obligation.
The confidentiality obligation defined in this Article shall be valid for the duration of this agreement and for a period of three years after its termination.
Article 25 - Penalty for violation of secrecy obligation
If the principal violates the section of these terms and conditions on confidentiality, he shall forfeit to the service provider an immediately payable fine of € 5,000 for each violation and in addition an amount of € 500 for each day that the violation continues. This is irrespective of whether the breach can be attributed to the principal. Moreover, no prior notice of default or legal proceedings are required for the forfeiture of this penalty. There is also no need for any form of damage.
Forfeiture of the penalty referred to in paragraph 1 of this article shall not affect the other rights of the service provider, including its right to claim damages in addition to the penalty.
Article 26 - Non-acquisition of staff
The principal shall not employ employees of the service provider (or of companies engaged by the service provider for the execution of this agreement and who are or have been involved in the execution of the agreement). Nor shall he let them work for him in any other way, directly or indirectly. This prohibition applies during the term of the agreement until one year after its termination. There is one exception to this prohibition: the parties may make other arrangements in good commercial negotiations. These agreements apply insofar as they have been recorded in writing.
Article 27 - Applicable law and competent court
1. Every agreement between the parties is exclusively governed by Dutch law.
2. The Dutch court in the district where MediaBrix has its registered office/practice is exclusively competent to take cognisance of any disputes between parties, unless the law imperatively dictates otherwise.